Monday, April 23, 2012

A constitutional Act

The debate in 1892 around the Declaratory Act related to its constitutional nature. This is well discussed in an anonymous letter to the Glasgow Herald in September of that year. Archibald McNeilage appears to have taken similar views in a separate letter to the same newspaper.

Donald Beaton wrote much later on the subject: "The founders of the Free Presbyterian Church, while holding that the majority in passing the Declaratory Act were acting ultra vires, inasmuch as a use was made of the Barrier Act for which it was never intended, at the same time asserted that the Declaratory Act, being inconsistent with the Confession, violated the Constitution of the Free Church. In taking up positions seemingly at variance, there was no inconsistency. Both positions were tenable and consistent with the real facts of the situation created by the ecclesiastical policy of one of the astutest ecclesiastical leaders Scotland ever had, though, alas! his gifts were prostituted to a bad cause." For more on the constitutional aspect of the Act see here.

We can resume the questions that we began in relation to this Act in a previous post.

4.Was it not only a mere Act and not part of the constitution?

The Declaratory Act was not just a resolution adopted by the Assembly; it was passed by a majority of presbyteries under the Barrier Act in 1893.  The Barrier Act makes provision that no proposal of the Assembly shall be regarded as a standing law and constitution of the Church without the consent of the majority of presbyteries. It follows that the Declaratory Act being passed under this Act formed part of the constitution, thereby changing it (by adding to and taking from the Confession of Faith).

5. Was it not beyond the powers (ultra vires) of the Free Church to change its constitution?

A Church has no right to change its constitution in the face of a dissenting minority and remain the same body - it is ultra vires. A Church can of course change its constitution unanimously and remain the same Church, particularly if there is nothing contradictory in the new constitution. What happens when a Church does change its constitution through the appropriate legal means but without entire unanimity? It ceases to be the same body that it was and the dissenting minority instead become the true representatives of the original body. This is what happened in 1893 and why the FP Church was now the true representative of the Free Church of 1843.

6.Did the Formula (ordination vows) not have to be changed before the Constitution was altered?

The Act had to be a law before it could be subscribed to. Putting the Act into the Questions and Formula did not make it a law - it was already in force. The failure to change the Formula was a political ploy to achieve the desired outcome without upsetting the minority.  It was the Church's Act and it ensured that anyone could accept the doctrines of the Act without hindrance. It was found to be impossible for anyone to subscribe to the Westminster Confession of Faith and add an explicit rejection of the Declaratory Act.  James Macdonald, Dornoch inserted this kind of rejection of the Act into his subscription (1893) but the Synod of Caithness and Sutherland ordered that it be removed from the records. The fact that the Formula was unchanged was due to a lack of honesty which would have required subscription to these doctrines if the Church was convinced that they were true.  The Declaratory Act also emptied the Formula of all meaning.  It was no longer possible to have any complete assurance or definite indication as to the views of ministers and office-bearers. The truth was that it was the Formula itself that was a dead letter and not the Declaratory Act.  Furthermore by the Act the Free Church sanctioned the sinful dishonesty of vowing full subscription while having mental reservations.

The idea that the Act was inoperative because the Formula had not changed is not valid.  Men were availing themselves of the Declaratory Act in subscribing the Formula and the Constitutionalists were powerless to prevent this or even detect it, and so unable to keep their ordination vows.  Maurice Grant recognises the weakness of the argument in relation to the Formula. “In their Reasons for Dissent at the passing of the Declaratory Act in 1892 the Free Church constitutionalists specifically stated that the Act 'must be regarded as a new law of this Church, which alters the relations of the Church to the Confession of Faith, by substituting for the doctrines therein embodied the statements made in the Act, as the future standard of orthodoxy in this Church' (Minutes of Free Church General Assembly, 1892). The argument that no change had been made in the Questions and Formula is in any event something of an academic one, since the Assembly of 1894, in what was presented as a relieving Act, stated that 'those who are licensed or ordained to office in this Church, in answering the Questions and subscribing the Formula, are entitled to do so in view of the said Declaratory Act'. Thus, though the Questions and Formula themselves were unchanged, the facility for an ordinand to take advantage of the Declaratory Act when answering and subscribing them was specifically written into the law of the Church. It is best therefore to look elsewhere for a satisfactory vindication of the constitutionalists' position” (The Heirs of the Disruption in Crisis and Recovery 1893-1920).

7.Was the Act not just a dead letter on the statute book?

No, because protests against the Act (e.g. in the Synod of Glenelg) were not permitted by the General Assembly (1893).  This showed that individuals were bound by the Act even in their consciences since it was impossible to protest against it in order to clear the conscience.  An overture by Rev. Angus Galbraith, Lochalsh (Free Church minority 1900) to the same General Assembly recognised this fact by observing that it was clear that it was not "optional for them to receive or to reject this Act". He went on to say that it "was very small comfort to be told that this Act was not intended to interfere with their personal beliefs when they learned that it regulated their creed and public testimony as a Church". Dr. Rainy responded with an indication of the real force of the Act, emphasising that "the Act has set forth the Church's understanding of the range of opinion which is open in this Church in its own understanding of what is involved in the acceptance of the Confession of Faith by our ministers and long as it lasts, no doubt it is authoritative."